STILWELL, J.: In a re-trial,
Tunzy Sanders was convicted of murder, attempted armed robbery, and criminal
conspiracy. He appeals, arguing his rights under the Confrontation Clause of
the Sixth Amendment were violated when the trial court admitted the prior testimony
of Aurelien Vigier, a jailhouse informer, inasmuch as he was unable to confront
and cross-examine Vigier about an alleged “tacit understanding” that Vigier
would receive “some benefit by virtue of his cooperation in this case.” We
affirm.

BACKGROUND

Sanders and two others were charged
following the shooting death of a restaurant employee who was leaving at the
close of business with that day’s proceeds.

At the first trial, two jailhouse
informants, Aurelien Vigier and David Staley, testified appellant confessed
to the crime while imprisoned. The State also introduced the statement of Temetrius
Williams, which placed Sanders and his cohorts at the scene with the intent
to commit a robbery. Williams retracted her statement on the stand.

The jury found Sanders guilty as
charged. Sanders appealed the convictions on the ground his Sixth Amendment
right to counsel was violated when his sister, an attorney from another state,
was removed as counsel prior to trial. Our supreme court reversed the convictions
and remanded the case for a new trial. State v. Sanders, 341 S.C. 386,
534 S.E.2d 696 (2000).

Prior to re-trial of the case, the
State moved to admit a transcript of Vigier’s testimony from the first trial
into evidence, asserting Vigier could not be located for service of subpoena
because he had left the state in violation of the terms of a probationary sentence.
Sanders objected to the admission of the prior testimony, arguing its admission
would violate the Confrontation Clause of the Sixth Amendment to the United
States Constitution. Specifically, Sanders’ sister, acting as defense counsel,
asserted that had she been allowed to participate at the first trial she would
have been more thorough than defense counsel was in cross-examining Vigier concerning
his alleged deal with the State in exchange for his testimony against Sanders.
She further asserted that facts regarding the alleged deal were revealed only
after Vigier testified in the first trial. The trial court found Vigier’s testimony
was admissible under Rule 804, SCRE.

The case proceeded to re-trial without
a jury. Despite Sanders’ denial of any involvement in the murder or robbery,
the trial court found Sanders guilty as charged and sentenced him to thirty-five
years imprisonment for murder, twenty-five years imprisonment for armed robbery,
and five years imprisonment for criminal conspiracy.

DISCUSSION

Sanders asserts the admission of
Vigier’s prior testimony violated his Confrontation Clause rights because he
was not afforded an opportunity to cross-examine the witness regarding “subsequent
revelations” pertaining to the State’s alleged “deal” with the witness. We
disagree.

[W]hen a hearsay declarant is not
present for cross-examination at trial, the Confrontation Clause normally
requires a showing that he is unavailable. Even then, his statement is admissible
only if it bears adequate “indicia of reliability.” Reliability can be inferred
without more in a case where the evidence falls within a firmly rooted hearsay
exception. In other cases, the evidence must be excluded, at least absent
a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S.
56, 66 (1980). Here, Vigier was unavailable and his prior testimony fell within
an established hearsay exception. Thus, Sanders’ Confrontation Clause rights
were not violated.

Under Rule 804(b), SCRE, certain
statements are not excluded by the hearsay rule if the declarant is unavailable
as a witness. Rule 804(b)(1) provides:

(b) Hearsay Exceptions. The
following are not excluded by the hearsay rule if the declarant is unavailable
as a witness:

(1) Former Testimony. Testimony
given as a witness at another hearing of the same or a different proceeding,
or in a deposition taken in compliance with law in the course of the same
or another proceeding, if the party against whom the testimony is now offered,
or, in a civil action or proceeding, a predecessor in interest, had an opportunity
and similar motive to develop the testimony by direct, cross, or redirect
examination.

“Unavailable” is defined in Rule
804(a) and includes situations in which the declarant is absent from the hearing
and the proponent of a statement has been unable to procure the declarant’s
attendance by process or other reasonable means. Here, it is uncontested that
the State made numerous unsuccessful attempts to procure Vigier’s appearance
at the re-trial by subpoena and that Vigier was, therefore, unavailable within
the meaning of Rule 804(a) and (b).

The more central question, however,
is whether Sanders was afforded an opportunity and had a sufficiently similar
motive to develop Vigier’s testimony during the first trial. We agree with
the trial court that Sanders had such motive and opportunity. At the first
trial, Vigier testified that while he was incarcerated with Sanders, Sanders
told him he shot and killed the victim with a .22 caliber pistol, then cleaned
the gun and threw it on top of a restaurant in Georgia. He further testified
the State had not offered him a deal and that no promises were made to him to
secure his testimony. During cross-examination, Vigier acknowledged he hoped
he would get a deal because of his testimony.

During the re-trial, the assistant
solicitor made the following statement regarding his conversations with Vigier
before the first trial:

We were actually approached by
his attorney . . . and he asked us if we would give him consideration. And
we told his attorney . . . we couldn’t get him a deal right now, but we would
certainly take into account when . . . it came time for him to go to court
. . . . The State is willing to stipulate that he did receive a recommended
probation sentence sometime after . . . testifying in this trial, as well
as the trial of his co-defendants. And it’s the State’s testimony that he
was not given any deal, that we told him his cooperation would be considered
when it came time for his case to go to court.

In ruling the testimony admissible,
the court stated that in its opinion “there was at least some tacit understanding
that [Vigier] might get some benefit at some point in time by virtue of [his]
cooperation.”

Sanders would have this court hold
that the assistant solicitor’s statements amount to a significant revelation
as to secret negotiations, and Sanders’ unawareness of these negotiations during
the prior proceedings negatively impacted his ability to effectively cross-examine
Vigier. Our review of the record convinces us differently. The assistant solicitor’s
recount of his conversations with Vigier was consistent with Vigier’s testimony
at the first trial: Vigier expected he would receive some benefit from his
testimony against Sanders, but the State made no promise of a deal to secure
his testimony. Despite ample opportunity, the only question defense counsel
asked Vigier about his communications with the solicitor’s office was whether
he was hoping to receive a deal from them. Additionally, although Sanders argues
the change in other evidence made Vigier’s testimony more central to the State’s
case in the re-trial, Vigier nevertheless testified Sanders confessed to the
crimes and thus Sanders unquestionably had a motive to develop any potential
weaknesses in his testimony during cross-examination. Because Sanders had sufficient
opportunity and motive to develop Vigier’s testimony during the original trial
to satisfy the requirements of Rule 804(b)(1), SCRE and because Vigier was unavailable,
the court properly admitted Vigier’s prior testimony in the re-trial. As such,
Sanders’ right of confrontation was not violated.